wombatK wrote:Kids won't have cameras so it won't help kids like these. Someone who couldn't afford a decent bike also will never have camera. A law change would be fairer to reverse burden of proof

Yep that was exactly what I was thinking as I read the Egan case - the Westbus bus had lots of cameras, but it seems these were all foccussed internally. I have no doubt that if they had an obligation to vulnerable road users like this kid, I expect they would easily find a way to install a couple more cameras to capture what happended & what the driver could see.

as a detail, a lot of newer buses are decked out with cameras mounted that give visuals of the front half exterior ( I recall one incident where they were used to incriminate a driver who swiped a parked car yet denied it ..... until the film was played of him hitting the car and swearing in exclamation of course ...

jules21 wrote:i think a key point of differentiation that is being alluded to here is laws which have a positive duty for a person to not be negligent, and others for which negligence (in whichever form) is prohibited.

the difference is that in the latter case, a breach of the law has only occurred where negligence can be established. this seems to make courts reticent about convicting on that basis, where there are doubts about the negligence. in the case of the bus driver mentioned earlier, there are road safety laws (not rules, which by convention address more minor offences) addressing negligence. yet my observation of their enforcement is that they tend to be used for discrete decisions - crashing while impaired, drag racing, crashing while talking on phone, etc. if you hit a cyclist, while for most of us this creates instant suspicion that driver negligence was involved, the courts seem reluctant to support that interpretation (i.e. let the driver off with a minor penalty only, e.g. infringement offence).

on the other hand, where there is a positive duty, an offence may be committed even without evidence of any negligent action having taken place. this is how workplace health and safety laws function - a person must demonstrate that they have taken steps to prevent an undesirable outcome (death, injury). they can in theory be charged even without any death or injury having (yet) taken place - e.g. simply by failing to install a machine guard.

to me, the notion of a positive duty on motorists in road traffic law has similar attraction to a vulnerable user law - it (helps) remove the option of the SMIDSY defence for motorists. under those scenarios, a motorist has potentially committed an offence by simply getting behind the wheel without having taken proper precautions to avoid SMIDSY. while in practice no one is going to be charged while leaving their driveway in a distracted state, it would make their defence more difficult after hitting someone.

As I understand it, you are talking about fault elements, or the lack thereof. Negligence plus the criminal road offences all have a fault element. Society puts motorists on a pedestal with the result that courts - judge or jury - are more reluctant than they should be to find them at fault. So get rid of fault elements! the argument goes. Well, I agree. The issue with doing it to the law of negligence is this: if you want the law to have a normative effect it will have to be through its effect on insurance premiums. Do it to criminal laws and you can impose penalties that necessarily affect the individual - like gaol - and are more likely to have an effect.

Seatbelts and DUI are the classic examples of such laws that supposedly worked. I would point out, though, that they didn't just amend the legislation and move on. The pushed the point, hard and long. I'd like to see this happen with vulnerable road user laws. I dunno if I should expect it any time soon.

This is edging dangerously close to a term that is so overloaded, misleading and inflammatory that I suggest the mods should treat it like a cussword and automatically mangle it to some bizarre euphemism. You know the one I mean.

high_tea wrote:The issue with doing it to the law of negligence is this: if you want the law to have a normative effect it will have to be through its effect on insurance premiums.

Why do you say that this is the only option ? With NSW's OH&S Act 2000, officers of the company (at any level) became open to prosecution if there were breaches of the OH&S laws and personally liable - e.g. responsible for fines that might be imposed. It does not appear that insurance can cover this - in some cases in my company, decisions to leave have been deferred until outstanding OH&S cases were resolved, so it seems the officers could not be insured or protected from the financial impacts if they left the company.

This single fact of personal liability made a huge impression on officers in my company - and changed behavior's overnight. The effect has been lasting, even though there have been no prosecutions of officers (to date). If it can do that, then maybe its immaterial whether you're having a normative effect.

Change in the OH&S liability laws shifted the culture in many organisations in this state, and it's pretty fair to think thatchanges in the motoring/cyclists liability laws could achieve a dramatic shift in the culture we cycle in as well.

Cheers

WombatK

Somebody has to do something, and it's just incredibly pathetic that it has to be us -Jerry Garcia

high_tea wrote:The issue with doing it to the law of negligence is this: if you want the law to have a normative effect it will have to be through its effect on insurance premiums.

Why do you say that this is the only option ? With NSW's OH&S Act 2000, officers of the company (at any level) became open to prosecution if there were breaches of the OH&S laws and personally liable - e.g. responsible for fines that might be imposed. It does not appear that insurance can cover this - in some cases in my company, decisions to leave have been deferred until outstanding OH&S cases were resolved, so it seems the officers could not be insured or protected from the financial impacts if they left the company.

This single fact of personal liability made a huge impression on officers in my company - and changed behavior's overnight. The effect has been lasting, even though there have been no prosecutions of officers (to date). If it can do that, then maybe its immaterial whether you're having a normative effect.

Change in the OH&S liability laws shifted the culture in many organisations in this state, and it's pretty fair to think thatchanges in the motoring/cyclists liability laws could achieve a dramatic shift in the culture we cycle in as well.

Cheers

I was specifically talking about the law of negligence. OH&S legislation is a whole nother thing, as is criminal law (which is where I personally think the change should be made).

jules21 wrote:the difference is that in the latter case, a breach of the law has only occurred where negligence can be established. this seems to make courts reticent about convicting on that basis, where there are doubts about the negligence. in the case of the bus driver mentioned earlier, there are road safety laws (not rules, which by convention address more minor offences) addressing negligence. yet my observation of their enforcement is that they tend to be used for discrete decisions - crashing while impaired, drag racing, crashing while talking on phone, etc. if you hit a cyclist, while for most of us this creates instant suspicion that driver negligence was involved, the courts seem reluctant to support that interpretation (i.e. let the driver off with a minor penalty only, e.g. infringement offence).

Its not a particularly high standard of proof in negligent compensation cases - as that is a civil matter. ie its a fairly low bar and there is also contributory negligence (ie courts do understand the concept that both parties in a collision can have elements of fault). However its all meaningless as a deterrent because the insurance company will wear it, not the driver, and thus by extension, good drivers will wear it for bad drivers.

IMO the decision about the bus driver is typical of a civil case - on the balance of probabilities the judge decided the highest probability was the driver wasn't negligent. It is after all a curved road and at the last seconds of moving off, he needs to be keeping a fairly solid eye on the righthand mirror, because traffic is likely to appear there late.

The actual mistake (which I've said before on these forums), is that CTP indemnifies the driver, which means that the -only- deterrent for being a dangerous halfwit is the driving rules and criminal enforcement, and the criminal system is entirely black and white and has a very high bar for a conviction as it should.

IMO the compensation scheme should be changed around so that it does NOT indemnify the driver, it is just there to protect the victims, and therefore the operators of the scheme should be free to recover court awarded costs (with some sort of cap) from at fault drivers. That would have 2 effects - (a) to make drivers more uncomfortable about risking accidents with vulnerable road users and (b) it would reduce premiums for drivers that never have accidents, because more of the costs are worn by at fault drivers.

zero wrote:Its not a particularly high standard of proof in negligent compensation cases - as that is a civil matter. ie its a fairly low bar and there is also contributory negligence (ie courts do understand the concept that both parties in a collision can have elements of fault). However its all meaningless as a deterrent because the insurance company will wear it, not the driver, and thus by extension, good drivers will wear it for bad drivers.

IMO the decision about the bus driver is typical of a civil case - on the balance of probabilities the judge decided the highest probability was the driver wasn't negligent. It is after all a curved road and at the last seconds of moving off, he needs to be keeping a fairly solid eye on the righthand mirror, because traffic is likely to appear there late.

The actual mistake (which I've said before on these forums), is that CTP indemnifies the driver, which means that the -only- deterrent for being a dangerous halfwit is the driving rules and criminal enforcement, and the criminal system is entirely black and white and has a very high bar for a conviction as it should.

IMO the compensation scheme should be changed around so that it does NOT indemnify the driver, it is just there to protect the victims, and therefore the operators of the scheme should be free to recover court awarded costs (with some sort of cap) from at fault drivers. That would have 2 effects - (a) to make drivers more uncomfortable about risking accidents with vulnerable road users and (b) it would reduce premiums for drivers that never have accidents, because more of the costs are worn by at fault drivers.

I completely agree. I haven't seen that suggested before in that exact manner but it makes alot of sense.

zero wrote:IMO the compensation scheme should be changed around so that it does NOT indemnify the driver, it is just there to protect the victims, and therefore the operators of the scheme should be free to recover court awarded costs (with some sort of cap) from at fault drivers.

I think this is definitely the winner - in NSW, CTP greenslips are NOT insurance. It is a tax administered by a competitive environment on car owners. It is the closest thing we have to "car damage to people compensation". You get charged for ambulance callouts of any kind in NSW... unless you're a pensioner, or you are in a car accident. CTP insurance wears the bill automatically I was shocked to hear that for the ambo billing team.

This driver indemnity issue would not work in voluntary insurance regimes like fire/theft/3rd party property or comprehensive, because it is no longer insurance... unless you just made it illegal to claim in an at fault collision. THAT would put a lot of cameras in cars. A camera in each direction really isn't unrealistic for a car. It's not even expensive now (considering many people spend 20K+ on the car!)

zero wrote:IMO the compensation scheme should be changed around so that it does NOT indemnify the driver, it is just there to protect the victims, and therefore the operators of the scheme should be free to recover court awarded costs (with some sort of cap) from at fault drivers.

Pretty much a retrograde step (certainly in Victoria). It is simply the law of torts that you are suggesting. And in this scenario the wealthy and powerful get the free pass, while those who lack resources (or don't belong to the 'old boys club') get bankrupted and pushed into living in cardboard boxes.

jules21 wrote:the difference is that in the latter case, a breach of the law has only occurred where negligence can be established. this seems to make courts reticent about convicting on that basis, where there are doubts about the negligence. in the case of the bus driver mentioned earlier, there are road safety laws (not rules, which by convention address more minor offences) addressing negligence. yet my observation of their enforcement is that they tend to be used for discrete decisions - crashing while impaired, drag racing, crashing while talking on phone, etc. if you hit a cyclist, while for most of us this creates instant suspicion that driver negligence was involved, the courts seem reluctant to support that interpretation (i.e. let the driver off with a minor penalty only, e.g. infringement offence).

Its not a particularly high standard of proof in negligent compensation cases - as that is a civil matter. ie its a fairly low bar and there is also contributory negligence (ie courts do understand the concept that both parties in a collision can have elements of fault). However its all meaningless as a deterrent because the insurance company will wear it, not the driver, and thus by extension, good drivers will wear it for bad drivers.

IMO the decision about the bus driver is typical of a civil case - on the balance of probabilities the judge decided the highest probability was the driver wasn't negligent. It is after all a curved road and at the last seconds of moving off, he needs to be keeping a fairly solid eye on the righthand mirror, because traffic is likely to appear there late.

The actual mistake (which I've said before on these forums), is that CTP indemnifies the driver, which means that the -only- deterrent for being a dangerous halfwit is the driving rules and criminal enforcement, and the criminal system is entirely black and white and has a very high bar for a conviction as it should.

IMO the compensation scheme should be changed around so that it does NOT indemnify the driver, it is just there to protect the victims, and therefore the operators of the scheme should be free to recover court awarded costs (with some sort of cap) from at fault drivers. That would have 2 effects - (a) to make drivers more uncomfortable about risking accidents with vulnerable road users and (b) it would reduce premiums for drivers that never have accidents, because more of the costs are worn by at fault drivers.

Except that insurance companies would helpfully fill the gap, probably by adding it to third-party property and comprehensive policies. This would dilute both the deterrent effect and the effect on premiums. Then some people who pay non-compulsory insurance will kick up a fuss about paying twice (which is a specious argument, but that won't stop them making it). It would probably help a bit, but it illustrates a problem with trying to push this sort of stuff via civil laws: insurers like to make money diluting any deterrent effects these laws might have.

Xplora wrote:This driver indemnity issue would not work in voluntary insurance regimes like fire/theft/3rd party property or comprehensive, because it is no longer insurance... unless you just made it illegal to claim in an at fault collision.

Eh? You go to court and your insurer only indemnifies you if you win? Words fail me.

People seem to be mixing up the personal and property claims here - two very different worlds of compensation, certainly here in Victoria. Personal injury compensation is all covered under TAC (Transport Accident Commission) - no-fault, no court case, the claim is made with TAC and your medical and rehab needs are covered. Property cases are dealt with through your private car insurance. Some have none , some go for third party, fire & theft cover, while others have full comprehensive insurance. Often there is no court case in property cases either as the insurers just get the claim sorted out of court - a much better way to keep the costs low.

In my opinion the only problem with the TAC no-fault system is the lack of any follow-up for drivers who are the cause of an injury. In your property insurance if you are at fault your insurer still covers you, but in future you face elevated premiums. Do it too often and you may face great difficulty even getting insurance. This can really bite, especially for younger drivers who are often more likely to lack responsibility and take greater risks.

But there is no ramping up of the TAC charge (as far as I know) for drivers who have caused injuries. Bringing this small change in would hit drivers' hip-pocket nerve and promote a greater sense of accountability.

il padrone wrote:People seem to be mixing up the personal and property claims here - two very different worlds of compensation, certainly here in Victoria. Personal injury compensation is all covered under TAC (Transport Accident Commission) - no-fault, no court case, the claim is made with TAC and your medical and rehab needs are covered. Property cases are dealt with through your private car insurance. Some have none , some go for third party, fire & theft cover, while others have full comprehensive insurance. Often there is no court case in property cases either as the insurers just get the claim sorted out of court - a much better way to keep the costs low.

In my opinion the only problem with the TAC no-fault system is the lack of any follow-up for drivers who are the cause of an injury. In your property insurance if you are at fault your insurer still covers you, but in future you face elevated premiums. Do it too often and you may face great difficulty even getting insurance. This can really bite, especially for younger drivers who are often more likely to lack responsibility and take greater risks.

But there is no ramping up of the TAC charge (as far as I know) for drivers who have caused injuries. Bringing this small change in would hit drivers' hip-pocket nerve and promote a greater sense of accountability.

The blue bit annoys me no end. I know how hard it is to actually get the promised $x per week out of some of these irresponsible clowns? IMO a third party property (minimum) policy should need to be shown as part of rego renewal.

I'd have no problem with bumping the TAC component for drivers causing injury, add some incentive to take more care.

...whatever the road rules, self-preservation is the absolute priority for a cyclist when mixing it with motorised traffic.London Boy 29/12/2011

I used to only have third-party but after facing problems getting money out of a taxi insurance company when my car was written off I decided it would be easier to let somebody else fight my battles so I got comprehensive. Luckily my car is cheap so comprehensive only costs me $350pa.

il padrone wrote:In my opinion the only problem with the TAC no-fault system is the lack of any follow-up for drivers who are the cause of an injury. In your property insurance if you are at fault your insurer still covers you, but in future you face elevated premiums. Do it too often and you may face great difficulty even getting insurance. This can really bite, especially for younger drivers who are often more likely to lack responsibility and take greater risks.

But there is no ramping up of the TAC charge (as far as I know) for drivers who have caused injuries. Bringing this small change in would hit drivers' hip-pocket nerve and promote a greater sense of accountability.

+ 1

the system prioritises people's "right to drive" over accountability towards other road users. simple as that

ColinOldnCranky wrote:These cases demonstrates the need to move away from an adversarial blame game to a needs-based no-fault insurance regime. Which, btw, has lots of other benefifts.

The community as a whole shares the burden. I could live with that far easier than with injustices to either party.

There is some wisdom, i would support a no blame, needs based insurance system, would be a worthwhile step forward for our society.

Really, what you are saying is that innocent victims should get the same (lower)* payout as the negligent to remove 'injustices'. *(the inevitable effect in no fault systems - along with increased fraud/premiums)

We already have ma$$ive medicare, social security and other support services which are needs based. Maybe that money could be better targeted.

dontazame wrote:Really, what you are saying is that innocent victims should get the same (lower)* payout as the negligent to remove 'injustices'. *(the inevitable effect in no fault systems - along with increased fraud/premiums)

We already have ma$$ive medicare, social security and other support services which are needs based. Maybe that money could be better targeted.

The scheme working or not working comes down to governance more so than the social policy of the scheme.

ie the TAC payouts are similar, its just the premiums that are more expensive. It would appear that 30% more premiums reflect literally 30% more people (mostly at fault drivers), covered by the scheme, and not any particular increase in rorts and litigation.

dontazame wrote:Really, what you are saying is that innocent victims should get the same (lower)* payout as the negligent to remove 'injustices'.

Read the fine print - the scheme is based on need. Why should someone get greater medical care support (ie. ability to live) simply because they were deemed not at fault in an often complex collision situation. If the innocent victim needs more support, they should get it, but there should be no free lunches.

BTW it is not really a 'payout'. No injured person gets cash payments AFAIK, they simply get their medical and rehabilitation bills paid.

dontazame wrote:Really, what you are saying is that innocent victims should get the same (lower)* payout as the negligent to remove 'injustices'.

Read the fine print - the scheme is based on need. Why should someone get greater medical care support (ie. ability to live) simply because they were deemed not at fault in an often complex collision situation. If the innocent victim needs more support, they should get it, but there should be no free lunches'.

BTW it is not really a 'payout'. No injured person gets cash payments AFAIK, they simply get their medical and rehabilitation bills paid.

'Why should they get greater medical care' - and a lump sum payout for loss of income, pain and suffering, etc, etc? Because a negligent driver caused their injuries and the negligent driver (or their insurer) should pay for their actions - i.e. 'there should be no free lunches.

For every complex collision situation there are vastly more where fault is a no brainer - e.g. hit from behind, passenger, running red light, speed, drink driving. Also, there are vast numbers of congenital disability cases / general accident that get no common law payout or TAC support either. Why should negligent drivers be in a better position to them'?

dontazame wrote:Really, what you are saying is that innocent victims should get the same (lower)* payout as the negligent to remove 'injustices'.

Read the fine print - the scheme is based on need. Why should someone get greater medical care support (ie. ability to live) simply because they were deemed not at fault in an often complex collision situation. If the innocent victim needs more support, they should get it, but there should be no free lunches'.

BTW it is not really a 'payout'. No injured person gets cash payments AFAIK, they simply get their medical and rehabilitation bills paid.

'Why should they get greater medical care' - and a lump sum payout for loss of income, pain and suffering, etc, etc? Because a negligent driver caused their injuries and the negligent driver (or their insurer) should pay for their actions - i.e. 'there should be no free lunches.

For every complex collision situation there are vastly more where fault is a no brainer - e.g. hit from behind, passenger, running red light, speed, drink driving. Also, there are vast numbers of congenital disability cases / general accident that get no common law payout or TAC support either. Why should negligent drivers be in a better position to them'?

No system is perfect. Show me a law, I'll show you a law that sometimes produces unjust results. That doesn't make it a bad law, that makes it an imperfect law. Get over it.

il padrone wrote:Why should someone get greater medical care support (ie. ability to live) simply because they were deemed not at fault in an often complex collision situation.

Because a negligent driver caused their injuries and the negligent driver (or their insurer) should pay for their actions - i.e. 'there should be no free lunches.

unfortunately there are. their insurer (CTP) is just the tax payer. so the tax payer would fund the consequences of negligent drivers. this is how it used to be, but was stopped as it was being rorted.

Sydguy the problem is that the driver is also a resident of the retirement village & has a mental disability as a result of a car crash 44 years ago. The judge ruled that he was not mentally fit to stand trial.

The judge did what should have been done sometime ago & put in place protective measures so he can't drive.

It is entirely understandable that the family are upset, but in my opinion their anger should be directed at the system that allowed him to continue to own a car, despite his demonstrated inability to comply with the law & not drive drunk.

Sydguy wrote:So he got a fine and is not allowed to drive or visit a pub without supervision.... seriously I am not making this up.JM

The guy, by pleading guilty, limited the sentence that could be applied.

It would seem to be such an obvious and easy case to prosecute successfully that I am guessing that this is one of those cases where, if you plead guilty it winds up in a lesser court than if you dispute the charge. And, as is normal, the lesser court has lesser and less punitive sentencing options.

Although one article I read implies that it was suggested by the police. In wh ich case it could have been that the police are so under resourced that they will take shortcuts even in easy and extreme cases. That would be a worry.

I recall in recent times that one of the state governments (WA? My own?) after such an instance, signaled that they were going to legislate to limit the ability of the defendant being able to use such strategy.

Unfortunately, if and when it happens a great deal of horses will already have bolted.

Colin a minor but important correction - the driver did not plead guilty - the court found he was so mentally disordered so as not to be able to plead guilty or not guilty or to go through the process of a trial

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